Ram Richpal vs Bhushan Lal Sawhney & Ors

Rajiv Sahai Endlaw, J

CM No.36025/2017 (for exemption)

Allowed, subject to just exceptions.

The application is disposed of.

CM(M) 1103/2017 & CM No.36024/2017 (for stay)

The petition has been listed on urgent mentioning and has been received in this Court post-lunch hours and has been taken up at 1510 hours.

This petition under Article 227 of the Constitution of India impugns the order [dated 23rd September, 2017 in CIS No.5603/2006 of the Court of

Senior Civil Judge (North-East), Karkardooma Courts, Delhi] issuing warrants of possession for 3rd October, 2017 “for restitution of the suit

propertyâ€​.

The petitioner, in execution of a decree for possession in his favour, recovered possession of the “suit property†being property No.641-D

measuring 410 sq. yds. situated in Khasra No.2891/104, Village Chandrawali now known as Delhi Shahdara, near Loni Road, Ram Nagar, Delhi

Shahdara, and marked as ABCD and shown in red colour in the site plan proved in the suit.

The counsel for the petitioner/plaintiff informs, that on the respondent/defendant preferring a first appeal against the decree, the matter was

remanded to the Suit Court by framing two additional issues; that though the petitioner/plaintiff preferred a second appeal against the order of the First

Appellate Court, but withdrew the same; the cross-objections preferred by the respondent/defendant are still pending before this Court.

The counsel for the petitioner/plaintiff on enquiry informs, that pursuant to remand, the suit is still pending and recording of evidence is going on.

The respondent/defendant made an application under Section 144 of the Code of Civil Procedure, 1908 (CPC) to the Suit Court and which was

allowed and the petitioner/plaintiff was directed to deliver possession of the suit property back to the respondent/defendant. The petitioner/plaintiff

preferred first appeal against the said order and the First Appellate Court directed status quo to be maintained. Against the said order, RSA

No.350/2016 was preferred to this Court and which was allowed vide judgment dated 19th July, 2017 and the judgment/order of the Trial Court

directing restitution was restored.

It is in pursuance to the aforesaid, that the warrants of possession have been issued vide the order impugned in this petition.

The first contention of the counsel for the petitioner / plaintiff is that the petitioner / plaintiff has preferred a Special Leave Petition (SLP) to the

Supreme Court against the judgment dated 19th July, 2017 aforesaid.

More than two months have elapsed since the judgment dated 19th July, 2017 and if the petitioner/plaintiff desired the SLP to be listed, he could

have very well, in the said two months, got the SLP listed. Moreover, mere filing of an SLP is no reason for the Suit Court or for this Court to abstain

from implementing its orders.

The counsel for the petitioner/plaintiff has next contended that the warrants of possession could not have been issued by the Suit Court and the

respondent / defendant ought to have sought execution of the order of restitution.

No merit is found in the aforesaid contentions also. Section 144 of CPC mandates “the Court which passed the decree or order†to, on

application of the party entitled to benefit by way of restitution, cause such restitution to be made. It is evident from language of Section 144 that the

respondent/defendant was not required to file a separate application for execution of the order of restitution.

Supreme Court in Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das AIR 1953 SC 136 held that it is one of the first and highest duties of a

court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgment-debtor, it is the duty of the Court to undo

the wrong caused to him. Similarly in Binayak Swain Vs. Ramesh Chandra Panigrahi AIR 1966 SC 948, it was held that the principle of the doctrine

of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree

to make restitution to the other party for what he has lost; this obligation arises automatically on the reversal or modification of the decree and

necessarily carries with it the right to restitution of all that has beendone under the erroneous decree; the Court in making restitution, is bound to

restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced

them from. In Kavita Trehan Vs. Balsara Hygiene Products Ltd. (1994) 5 SCC 380 it was held that Section 144 of the CPC incorporates only a part

of the general law of restitution and is not exhaustive. The jurisdiction to make restitution, was held to be inherent in every Court and was to be

exercised whenever justice of the case demanded. This Court also in Jagdish Lal Arora Vs. M.E. Periera AIR 1977 Del 12 echoed the same

sentiment and it was further held that the judgment-debtor is entitled to restitution even though ultimately, after fresh disposal, a decree is passed in

favour of decree-holder. It was held that what has to be seen is whether at the time of the application for restitution, the judgment-debtor was entitled

to restitution, because on that date, the decree in execution of which possession was recovered had been set aside. To the same effect are Jugal

Kishore Vs. Maharaj Bahadur 1978 Rajdhani Law Reporter (Note) 80, Jaswant Kaur Vs. Tikam Dass 1986 II DRJ 117 and Sanjay Sharma Vs. Ajay

Sharma 2013 SCC OnLine Del 316.

No other argument has been raised.

There is no merit in the petition.

Dismissed. No costs.